Section 230 Bars Claims That Gmail Is Sending RNC’s Emails to Spam: Google

Google wants the U.S. District Judge Troy Nunley for Eastern California in Sacramento to dismiss the Republican National Committee’s allegations that Google is deliberately channeling the RNC’s fundraising emails to recipients’ Gmail spam folders out of “partisan animus” (see 2210260080), said its motion Monday (docket 2:22-cv-01904). The RNC alleged its emails wound up in spam especially during the crucial end-of-month periods when its fundraising activities reached their peak.

The “RNC is wrong” when it accuses Google of “an elaborate, politically motivated plot” to suppress the political speech and income of a major political party, said the motion. Gmail’s spam filtering policies “apply equally to emails from all senders, whether they are politically affiliated or not,” it said. The Federal Election Commission already rejected the RNC’s “political-discrimination theory,” saying Gmail filters out spam to enhance the value of the Gmail product, not to influence any election for federal office, it said.

The RNC could have participated in a pilot program during the 2022 midterm elections “that would have allowed its emails to avoid otherwise-applicable forms of spam detection,” said Google. Many other politically affiliated entities chose to participate in the FEC-approved program, it said: “The RNC chose not to do so. Instead, it now seeks to blame Google based on a theory of political bias that is both illogical and contrary to the facts alleged in its own Complaint.”

The RNC’s claims should be dismissed “for a variety of independent reasons,” said Google. Its sole federal claim is that Google violated the Telecommunications Act, it said. But the TCA applies only to common carriers, and “binding authority makes clear that email services like Gmail are not common carriers under federal law,” it said.

On the RNC’s allegations that Google violated California’s Unruh Civil Rights Act by discriminating against the RNC based on its political affiliations, nothing in the complaint suggests the RNC’s political affiliations or views “played any role in Google’s spam-filtering decisions,” said Google. The Unruh Act “does not extend to differential treatment based on political viewpoints,” it said.

Even if the RNC could “overcome the obstacles” in its complaint, its claims are “categorically barred” by Section 230 of the Communications Decency Act, which “immunizes Google for precisely the sort of conduct alleged” in the complaint, said Google.

The pilot program the FEC authorized in August at Google’s request is scheduled to expire Jan. 31, said Google. Under the program, emails sent by program participants “are not subject to forms of spam detection” they otherwise would be exposed to, it said.

The placement of those emails into users’ inboxes or spam folders “relies on direct feedback from users who receive the emails,” said Google. “Users may provide this feedback upon receiving the first or a subsequent email from the sender,” it said. Program participants receive information about their “inboxing rate,” which measures how frequently emails are delivered to users’ inboxes as opposed to spam folders, it said. The RNC's opposition brief, if any, is due Feb. 6, and Google's reply brief, if any, is due Feb. 16.